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Public law topic 2 separation of powers - Coggle Diagram
Public law topic 2
separation of powers
What does 'separation of powers' mean?
Strict interpretation
of SoP - no branch should have - influence over another...but is this workable?
Alternative interpretation
- SoP means a system of 'checks and balances' - while one branch may have influence over another, checks and balances will prevent one branch from abusing or exceeding its powers
Some general points
It's one of the 3 big constitutional principles. These are: parliamentary supremacy (a
legal doctrine
); rule of law (an
ideal
), separation of powers (a
political doctrine
)
3 'powers' (organs/branches of state)
Executive (administers the law)
Legislature (makes the law)
Judiciary (resolves disputes about the law)
(But remember - it isn't necessarily quite as clear cut as this - eg judges and executive also make law)
The relationships (overlap and separation) between the three bodies
EXECUTIVE
(GOVT) AND
LEGISLATURE
(PARL)
An example of overlap between these bodies
e.g. Govt ministers dominate the legislature as MPs and largely dictate parliamentary and legislative timetable
An example of the way in which there are checks and balances to avoid abuse of position
e.g. Govt ministers accountable to Parl via doctrine of ministerial responsibility
An example of separation between these bodies:
e.g. s.2 HC(D)A - maximum of 95 govt ministers can sit and vote in House of Commons
EXECUTIVE
(GOVT) AND
JUDICIARY
An example of overlap between these bodies
Some aspects of the judicial role can be exercised by members of the executive (eg ministers sitting on judicial tribunals deciding on compulsory purchase orders)
An example of the way in which there are checks and balances to avoid abuse of position
Judicial review - increased willingness of judiciary to examine exercise of power by the executive
An example of separation between these bodies:
e.g. CRA 2005 - creation of Supreme Court; change to role of Lord Chancellor; Judicial Appointments Committee to appoint judges
JUDICIARY
AND
LEGISLATURE
(PARLIAMENT)
An example of overlap between these bodies
Judiciary has quasi-legislative role in developing common law/interpreting statute, though Parl may pass further legislation if it 'disapproves' of developments in case law
An example of the way in which there are checks and balances to avoid abuse of position
Parliament can legislate as above
An example of separation between these bodies:
e.g. CRA 2005 - established Supreme Court in place of HoL. Judges cannot strike down primary legislation (the most it can do is declare incompatibility under HRA 1998)
What is the SoP position in the UK?
Constitution is uncodified. It has developed over many centuries: we have no formal separation of power.
Any SoP has developed on a piecemeal basis.
But there
is
evidence of SoP between the three branches: exec; leg; judiciary.
In the UK constitution, Parl is supreme. - In the UK constitution Supreme Court cannot question primary legislation.
What powers are we referring to?
:star:Executive (government)
:star:Legislature (Parliament)
:star:Judiciary (judges of Supreme Court and lower courts)
:question:
WHAT IS IT?
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:question:
HOW DOES THE DOCTRINE FUNCTION IN THE UK??
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Some cases which illustrate judicial activism or judicial deference (remembering that the judiciary's primary role is to
interpret
the law)
Shaw
Malone
Gillick
R
Bland
Fire Brigades Union
Jackson